26 Or. 53 | Or. | 1894
Opinion by
The first assignment of error in the notice of appeal is the action of the trial court in overruling plaintiff’s demurrer to the evidence supporting the new matter in the answer. The argument is that the answer is insufficient to constitute a defense because it does not aver that defendants relied upon the alleged warranty in making the purchase of the horse. To constitute an express warranty, such as is attempted to be alleged in the answer, there must be, as part of the contract of sale, either an express undertaking to that effect, or some affirmation or representation as to the quality or condition of the thing sold, made at the time of the sale, for the purpose of inducing the buyer to make the contract, and in either case the buyer must have relied upon the agreement or representation in making the purchase. It is elementary law that unless the purchaser of personal property relied and acted upon the statement or representation of the seller as to the quality or condition of the thing sold, and was thereby induced to make the purchase, he cannot maintain an action for a breach of warranty; and hence it is sometimes held that a general warranty does not apply to
The other assignments of error arise out of the ruling of the court in the admission and exclusion of testimony and instructions given and refused, but the bill of exceptions is so imperfect that we consider it best not to attempt to pass upon any of the questions thus suggested. The judgment of the court below will therefore be reversed, and the cause remanded for such further proceedings as may be proper, not inconsistent with this opinion.
Reversed.
